Amending the 1894 Constitution to Ensure Equal Education
Article XI, Section 1 of the New York State Constitution establishes that:
“the legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.”
Written 119 years ago, this education provision is badly outdated, failing to protect New Yorkers against the widespread structural inequalities that plague our public school system.
Over the past three decades, New York’s courts have expanded the meaning of Article XI, requiring the state to provide every student access to a “sound, basic education” in the 1982 case Board of Education, Levittown Union Free School District v Nyquist.
Unfortunately, this 1982 case also confirmed that the Constitution provided no mandate that the state must at least ensure equal funding for education to all students in all districts. In their decision, the court notes that:
It is significant that this constitutional language (Article XI) – adopted in 1894 at a time when there were more than 11,000 local school districts in the State, with varying amounts of property wealth offering disparate educational opportunities – makes no reference to any requirement that the education to be made available be equal or substantially equivalent in every district.
Nor is there any provision either that districts choosing to provide opportunities beyond those that other districts might elect or be able to offer be foreclosed from doing so, or that local control of education, to the extent that a more extensive program were locally desired and provided, be abolished.
What appears to have been contemplated when the education article was adopted at the 1894 Constitutional Convention was a State-wide system assuring minimal acceptable facilities and services... Nothing in the contemporaneous documentary evidence compels the conclusion that what was intended was a system assuring that all educational facilities and services would be equal throughout the State.
Today, there is an $8,601 per pupil spending gap between the state’s wealthiest and poorest school districts, the fifth largest gap in the nation, and as many as one third of schools in poor districts do not have enough art teachers to meet state requirements for art. While most schools in poor districts do not offer a single Advanced Placement (AP) course, it is common for schools in wealthy Westchester to offer over twenty.
Rather than attack the root of the problem and seek constitutional change, activists have sought to expand the definition of a “sound, basic education.” The 2003 New York Court of Appeals decision Campaign for Fiscal Equity (CFE) v. State of New York, the court ruled that the state must provide:
The opportunity for a meaningful high school education, one which prepares them to function productively as civic participants.
In this instance, the court found that the state violated the Constitution by failing to provide New York City public schools adequate resources to deliver a sound, basic education. However, it did not overturn Levittown and argue the state is obliged to provide students in these failing schools the same level of funding for education they would receive elsewhere.
Constitutional change, establishing the state’s duty to provide equal education to all students, is badly needed.
New York Education, Unequal and Underfunded
New York State will invest nearly $14 billion in statewide education during FY 2013, placing it third nationally, behind only California and Texas.
Yet as the Alliance for Quality Education (AQE) shows in their 2013 report, New York also ranks fifth nationally for having the biggest gap between the rich and poor districts on spending per pupil.
We would argue that this inequity, where those schools most in need receive the least support, violates our children' right to a sound, basic education as promised in our New York State Constitution. To make good on this promise, either the decision in Levittown must be overturned by future courts willing to expand the state’s obligation to our youth, or a constitutional amendment is needed.
Why is school funding distributed unequally?
New York’s schools receive funding from the federal government, the state government, and local governments. The funding provided by local government is significant. Raising upwards of $30 billion annually in property taxes, local governments spend over 60 percent of this amount, or $20 billion, supporting local schools.
Yet forcing schools to depend on revenue from taxes guarantees inequality between wealthy and poor school districts. Even before the economic crisis, poorer districts saw their tax base shrinking, with fewer dollars going to support essential school programs.
Additionally, in 2011, a law was passed limiting the amount local governments could increase property tax revenue in a year to just 2 percent, further restricting the ability of schools to raise extra revenue.
This cap, signed into law by Governor Cuomo, is by definition discriminatory, entrenching the education disparity between rich and poor districts. With property values in poor districts just a fraction of values in wealthier neighborhoods, the former have no way to keep up.
Unfortunately, state funding is insufficient to address the education disparity in New York’s schools, a disparity worsened by Governor Cuomo’s harmful property tax cap.
While the Governor’s FY 2013 budget was an improvement on previous years, providing an additional $321 million in classroom aid through Gap Elimination Adjustment (GEA) restorations and $203 million in “Fiscal Stabilization Funds,” similar restorations during FY 2012 failed to stem the tide of education cuts, with 59% of schools across the state increasing class size, 15% of schools reducing art classes, and 31% of schools reducing summer school due to budget constraints.
These cuts are just the latest in 5+ years of financial hardship. The Utica school district is not unusual in that, over the past four years, it was forced to cut 311 positions, of which 175 were teachers.
How does this underfunding impact schools?
The result of underfunding at the state level and reliance on local property taxes at the municipal level is massive inequality between New York’s wealthiest schools districts and its poorest, with poorer districts spending an average of $8,601 less per student than wealthier districts.
Expenditures Per Pupil
Table provided by the Alliance for Quality Education (AQE) in “Confronting the Opportunity Gap.”
This discrepancy translates to larger classes and fewer extracurricular activities, personalized coaching, and advanced placement (AP) courses for poorer students.
The following summary of programs available to students in four wealthy school districts, provided by AQE, illustrates this disparity.
Scarsdale (Westchester) High School offers 15 AP courses and another 6 college preparatory and SAT preparation courses, 21 art classes, 28 performing arts classes, 4 foreign languages, 21 sports teams, and an intensive college preparatory process that includes annual guidance counseling, college planning and a college testing program for 9th to 12th grades.
Rye (Westchester) offers 22 AP courses, 27 sports teams, high school programs such as performing arts (drama, vocal, dance), tutoring, and a writing mentor program. In the elementary schools, class sizes are limited to 20 students and middle school classes are limited to 23 students.
Chappaqua (Westchester) has only 1,300 students and offers 72 sports teams, 2 student publications, 85 clubs and 50% of students taking advantage of 18 AP course (with an 81% success rate).
Jericho (Nassau) High School offers 26 college or AP courses (including Chinese, business law, and civil engineering), 26 arts and performing arts classes, 10 business classes, 6 foreign languages, and 20 sports teams.
The AQE also found that, out of eight low income school districts, one third did not enough art teachers to meet state requirements, more than half of the schools failed to meet the state’s minimum requirements for physical education, and all but one school were unable to provide students with college readiness counseling and support.
The result is predictable: students attending schools in poorer districts are 27% less likely to graduate than students in wealthier districts. Their likelihood of graduating adequately prepared for college relative to their more affluent peers is lower still.
Why is this a Constitutional Question?
The 1982 court decision in Board of Education, Levittown Union Free School District v Nyquist established the state’s responsibility in providing a sound, basic education for every student, later defined as the "opportunity for a meaningful high school education, one which prepares them to function productively as civic participants." In school districts unable to raise sufficient funds through tax revenue, the State must therefore intervene and provide additional funding to meet this minimum standard.
Yet the Levittown case also declared that, constitutionally, massive inequality in our schools is acceptable. In his decision, Judge Jones argued that, “recognizing the existence of the very real disparities of financial support as found by the lower courts, we nonetheless conclude that such disparities do not establish that there has been a violation of either Federal or State Constitution.”
Judge Jones argued that, as of 1982, the state was meeting its duty to deliver funding sufficient for a sound, basic education. Yet in the future, should a “gross and glaring inadequacy” in state funding be demonstrated, Jones argued that the courts could mandate a “higher priority” for education.
The 2003 Court of Appeals decision in Campaign for Fiscal Equity (CFE) v. State of New York did just this, finding gross and glaring inadequacies in New York’s public education to be in violation of Article XI of the Constitution and requiring that the state provide additional funding.
Clearly, however, the current language of the constitution does not ensure equal access to a sound, basic education. An $8,601 gap between students in wealthy school districts and those in poor school districts is plainly a “gross and glaring inadequacy” in need of state intervention.
Now is the time to invest in educating the next generation of New Yorkers by enacting a constitutional amendment to better provide for our youth. We must call on our legislators and Governor Cuomo to adequately fund schools in all districts, wealthy and poor, and renew our state’s promise of a sound, basic education and a path to prosperity for every student.
Many states have constitutional provisions establishing the state's obligation to educate youth. Molly Hunter of the Education Law Center discusses these provisions in State Constitution Education Clause Language. The following are examples:
Unfortunately, state constitutions have also cemented inequality in education. In Alabama, the constitution states: